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What happens if you die while in the process of making up a new will that's been drafted (not signed)

Worcester, MA |

Is the old will valid or the new drafted will?

Attorney Answers 7

  1. Best answer

    The old will is still valid until the new one is properly executed. In my experience, occasionally people will expressly revoke the old will(s) while in the process of drawing up the new one. That's because sometimes they would prefer to die intestate (without a will) and let the law dictate their heirs instead of letting the old will control. That might be a worthwhile approach if someone had provided for a romantic partner (but not a spouse) and the relationship soured, or something along those lines.

    Talk to your estate planning attorney about your options, including what would happen if you died with your current will versus intestate. Best of luck.

    This post is for informational purposes only. You should not construe it as a legal opinion on any specific facts or circumstances, and you should not act upon this information without seeking professional counsel. Publication of these materials and your receipt of them does not create an attorney-client relationship.

  2. The previous, properly executed will controls and is valid.

    LEGAL DISCLAIMER: I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Wellesley. My practice is focused in the areas of family law, estate planning, probate, elder law, landlord-tenant and employment law. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state.

  3. A Will must be executed or it has no effect. The old Will would control.

    Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.

  4. Whatever you had before will control. Your intent doesn't matter, what matters is the words on the page that is properly executed.

    This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first.

  5. The old will would still be valid.
    Famous case in Florida about a will being sign
    in a hospital and the person died before the witness could sign-still invalid.

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

  6. My colleagues all advise you well. The answer to your question may be counterintuitive, because I can understand why you would think that the testator's intention is what controls. But the law is very clear as to what constitutes a will, and one of those requirements is that the document be signed. Thus, a document that is not signed is not a will, and the court does not have the power to decide otherwise. The same would be true if the testator passed away while enroute to the attorney's office to sign the will.

    Good luck to you.

    Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as rendering legal advice involves the ability of the attorney to ask appropriate questions of the person seeking such advice and to thus gather appropriate information. In addition, an attorney/client relationship is formed only by specific agreement. The purpose of this answer is to provide the questioner with general information, not to outline specific legal rights and remedies.

  7. Unfortunately, if the new will was never signed, the old will is still in effect. I recommend that you consult with an estate planning attorney, who may be able to make some recommendations to you regarding statutory rights that may be available despite the existence of the old will.

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